Full opinion text
MEMORANDUM OPINION AND ORDER KAREN E. SCHREIER, Chief Judge. Plaintiffs, Planned Parenthood Minnesota, North Dakota, South Dakota and Dr. Carol Ball, move for a preliminary injunction or temporary restraining order that would enjoin defendants, Governor Dennis Daugaard, Attorney General Marty Jackley, Secretary Doneen Hollingsworth, and Board President Robert Ferrell, in their official capacities, from enforcing South Dakota House Bill 1217 (hereinafter “the Act”), which takes effect on July 1, 2011. BACKGROUND In 2005, the South Dakota Legislature amended SDCL 34-23A-10.1 to include various requirements to ensure a pregnant woman’s voluntary and informed consent before she underwent an abortion. Some of those amendments were challenged by plaintiffs on the grounds that they violated the First and Fourteenth Amendments of the United States Constitution. See generally Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir.2008) (en banc). That case is currently before the Eighth Circuit Court of Appeals. In 2011, the South Dakota Legislature passed the Act at issue in this case. Plaintiffs challenge the constitutionality of the Act on the grounds that it violates the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause. A hearing on plaintiffs’ motion for preliminary injunction was held on June 27, 2011. There are essentially four parts to the Act: (1) The Pregnancy Help Center Requirements; (2) The 72-Hour Requirement; (3) the Risk Factors Requirement; and (4) the Coercion Provisions. Generally, the Pregnancy Help Center Requirements require a pregnant woman to consult with a registered “pregnancy help center” before she is able to undergo an abortion. The 72-Hour Requirement establishes at least a three-day waiting period between the pregnant woman’s initial consultation with her physician and the abortion. The Coercion Provisions impose a duty on the physician to certify that the pregnant woman has not been “coerced” as defined in the Act. Finally, the Risk Factors Requirement establishes what information the physician must tell a pregnant woman with regard to the “complications associated with abortion.” Defendants acknowledge that no court has upheld a requirement that is similar to the Risk Factors Requirement. Defendants also acknowledge that no other state currently has requirements that are comparable to the Pregnancy Help Center Requirements, the 72-Hour Requirement, or the Coercion Provisions. DISCUSSION 1. Preliminary Injunction Standard When ruling on a motion for a temporary restraining order or preliminary injunction the court must consider: (1) the threat of irreparable harm to the moving party; (2) the balance of this harm with any injury a preliminary injunction would inflict on other parties; (3) the likelihood of success on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). See also S.B. McLaughlin & Co. v. Tudor Oaks Condominium Project, 877 F.2d 707, 708 (8th Cir.1989) (noting that the trial court applied the same standard for a temporary restraining order and the preliminary injunction). “Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, [ ] district courts [must] make a threshold finding that a party is likely to prevail on the merits.” Rounds, 530 F.3d at 732-33. II. Likelihood of Success on the Merits Plaintiffs challenge the constitutionality of the Act as a whole and several specific provisions in the Act. The court will first analyze the threshold issue of whether plaintiffs are likely to succeed on the merits with regard to each challenged provision. A. The Pregnancy Help Center Requirements Section 5 of the Act sets forth the requirements for maintaining a registry of pregnancy help centers and the requirements that a pregnancy help center must satisfy in order to be on the registry. Section 7 of the Act defines “pregnancy help center” as follows: any entity ... that has as one of its principal missions to provide education, counseling, and other assistance to help a pregnant mother maintain her relationship with her unborn child and care for her unborn child, which entity has a medical director who is licensed to practice medicine in the state of South Dakota, or that it has a collaborative agreement with a physician licensed in South Dakota to practice medicine to whom women can be referred, which entity does not perform abortions and is not affiliated with any physician or entity that performs abortions, and does not now refer pregnant mothers for abortions, and has not referred any pregnant mother for abortions for the three-year period immediately preceding July 1, 2011[J Subsection 3 of section 3 of the Act reads as follows with regard to the requirements that pertain to pregnancy help centers: During the initial consultation between the physician and the pregnant mother, prior to scheduling a surgical or medical abortion, the physician shall ... [provide the pregnant mother with the names, addresses, and telephone numbers of all pregnancy help centers that are registered with the South Dakota Department of Health pursuant to this Act, and provide her with written instructions that set forth the following: (a) That prior to the day of any scheduled abortion the pregnant mother must have a consultation at a pregnancy help center at which the pregnancy help center shall inform her about what education, counseling, and other assistance is available to help the pregnant mother keep and care for her child, and have a private interview to discuss her circumstances that may subject her decision to coercion; (b) That prior to signing a consent to an abortion, the physician shall first obtain from the pregnant mother, a written statement that she obtained a consultation with a pregnancy help center, which sets forth the name and address of the pregnancy help center, the date and time of the consultation, and the name of the counselor at the pregnancy help center with whom she consulted[.] Section 6 of the Act then sets forth what the pregnancy help center is required and allowed to do during the required consultation. Specifically, section 6 states that a pregnancy help center: shall be permitted to interview the pregnant mother to determine whether the pregnant mother has been subject to any coercion to have an abortion, and shall be permitted to inform the pregnant mother in writing or orally, or both, what counseling, education, and assistance that is available to the pregnant mother to help her maintain her relationship with her unborn child and help her care for the child both through the pregnancy help center or any other organization, faith-based program, or governmental program.... Any written statement or summary of assessment prepared by the pregnancy help center as a result of counseling of a pregnant mother as a result of the procedures created by this Act, may be forwarded by the pregnancy help center, in its discretion, to the abortion physician. If forwarded to the physician, the written statement or summary of assessment shall be maintained as a permanent part of the pregnant mother’s medical records. Other than forwarding such documents to the abortion physician, no information obtained by the pregnancy help center from the pregnant mother may be released, without the written signed consent of the pregnant mother or unless the release is in accordance with federal, state, or local law. Section 4 of the Act then states that “no physician may take a consent for an abortion nor may the physician perform an abortion, unless the physician ... first obtains from the pregnant mother, a written, signed statement setting forth all information required by subsection 3(b) of section 3[,]” which is set forth above. Plaintiffs challenge these sections, hereinafter referred to as the Pregnancy Help Center Requirements, on six grounds: (1) they violate the patients’ rights to obtain an abortion; (2) they violate the patients’ right to free speech; (3) they violate the patients’ informational privacy rights; (4) they violate the patients’ and plaintiffs’ rights to equal protection of the laws; (5) they violate the Establishment Clause; and (6) they violate plaintiffs’ right to free speech. 1. Compelled Speech (Patient) Analysis “[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). In analyzing whether “state action violates the right not to speak, a court first determines whether the action implicates First Amendment protections.” Rounds, 530 F.3d at 733 (citation omitted). “If it does, the court must determine whether the action is narrowly tailored to serve a compelling state interest.” Id. In Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), the Supreme Court emphasized that the Free Speech Clause applies in instances of “compelled statements of ‘fact[.]’ ” Id. at 797-98, 108 S.Ct. 2667 (“These cases cannot be distinguished simply because they involved compelled statements of opinion while here we deal with compelled statements of ‘fact’: either form of compulsion burdens protected speech.”). See also Axson-Flynn v. Johnson, 356 F.3d 1277, 1284 n. 4 (10th Cir.2004) (“The constitutional harm — and what the First Amendment prohibits — is being forced to speak rather than remain silent.... This harm occurs regardless of whether the speech is ideological.” (citations omitted)). The First Amendment’s protection against compelled speech with regard to factual statements was reaffirmed in McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), where the Court explained: “Despite ... the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity----Accordingly, an author’s decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment.” Id. at 341-42, 115 S.Ct. 1511. Thus, in determining whether the Pregnancy Help Center Requirements implicate First Amendment protections, the court is guided by the basic principle that the First Amendment protects “not only [ ] expressions of value, opinion, or endorsement, but ... statements of fact the speaker would rather avoid[.]” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573-74, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citing McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511; Riley, 487 U.S. at 797-98, 108 S.Ct. 2667). The Eighth Circuit Court of Appeals has stated that “[a] First Amendment protection against compelled speech, however, has been found only in the context of governmental compulsion to disseminate a particular political or ideological message.” United States v. Sindel, 53 F.3d 874, 878 (8th Cir.1995) (citing cases). The holding in Sindel, however, is a narrow one: “There is no right to refrain from speaking when ‘essential operations of government may require it for the preservation of an orderly society, —as in the case of compulsion to give evidence in court.’ ” Id. at 878 (citation omitted). Here, there are no “essential operations of government” that “require” the information “for preservation of an orderly society.” See id. Indeed, the patients’ compelled statements are given to a private entity and not the government. To the extent that Sindel might be construed beyond this narrow holding, the Supreme Court’s decision in Hurley would seemingly abrogate any broader holding because Hurley was decided after Sindel. Defendants argue that the patients’ free speech rights are not implicated because a pregnant woman is only required to “speak” inasmuch as she is required to disclose that she is pregnant and that she has chosen to undergo an abortion. First, the plain language of the Pregnancy Help Center Requirements contradict defendants’ construction. Subsection 3(a) of section 3 states that the “pregnant mother must ... have a private interview to discuss her circumstances that may subject her decision to coercion.” An interview necessarily requires questions and answers. And defendants offer no explanation on how an interview “to discuss her circumstances” could be done without the pregnant woman actually disclosing “her circumstances.” Second, and in the alternative, if the pregnant woman does not have to actually discuss her circumstances during an interview and she only has to disclose that she is pregnant and has chosen to undergo an abortion, the Pregnancy Help Center Requirements still implicate the patient’s free speech rights. At the very least, the requirements on their face compel a patient to not only disclose that she is pregnant and is seeking an abortion, but also to disclose the name of her abortion physician so the pregnancy help center knows to whom to send the written statement or summary of assessment. See Section 6 of the Act (authorizing a pregnancy help center to forward “documents to the abortion physician”). This compelled disclosure necessarily reveals private factual information, such as she is pregnant, she is choosing to undergo an abortion, she has spoken with an abortion physician, and the name of her abortion physician. And she is being compelled to disclose this information to someone who is opposed to her decision to undergo an abortion. Even these “limited” compelled disclosures implicate the protection afforded by the First Amendment’s Free Speech Clause. See Hurley, 515 U.S. at 573-74, 115 S.Ct. 2338 (citing McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511; Riley, 487 U.S. at 797-98, 108 S.Ct. 2667). Defendants rely on Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006), to support their argument that the First Amendment does not apply with regard to the compelled speech required by the Pregnancy Help Center Requirements. See id. at 62, 126 S.Ct. 1297 (“This sort of recruiting assistance, however, is a far cry from the compelled speech in [West Virginia State Bd. of Education v.] Barnette [319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) ] and Wooley.”). The discussion in Rumsfeld about the lack of First Amendment protection must be understood in the context of what was at issue: “compelled statements of fact” such as “The U.S. Army recruiter will meet interested students in Room 123 at 11 a.m.” Id. at 62, 126 S.Ct. 1297. While the claim in Rumsfeld “trivialize[d] the freedom protected in Barnette and Wooley,” the same cannot be said with regard to the compelled statements of fact in this case. That is, there is a clear difference between “The U.S. Army recruiter will meet interested students in Room 123 at 11 a.m.” and “I am pregnant and have chosen to have an abortion. The name of my abortion physician is Dr. X.” The Pregnancy Help Center Requirements are therefore an intentional and purposeful regulation of speech that compels the patient to disclose to the pregnancy help center the name of her abortion physician, her pregnancy, and her decision to obtain an abortion. The plain language therefore makes it clear that the Pregnancy Help Center Requirements are not merely an incidental regulation of speech. The court finds that plaintiffs have met their burden of demonstrating that the Pregnancy Help Center Requirements “implicate[ ] First Amendment protections.” Rounds, 530 F.3d at 733. The burden is therefore on defendants to demonstrate that “the action is narrowly tailored to serve a compelling state interest.” Id. There is a compelling state interest in protecting a woman from being forced against her will to have an abortion and in informing a woman of truthful, relevant, and non-misleading information about abortion, alternatives to abortion, and pregnancy assistance. While plaintiffs dispute that these identified goals are the true goals behind the Pregnancy Help Center Requirements, there is no dispute that these goals constitute a compelling state interest. The court assumes, without deciding, that these are the real goals sought to be achieved by the Pregnancy Help Center Requirements and that they constitute a compelling state interest. Even if the Pregnancy Help Center Requirements are directed at a compelling state interest, however, they must be narrowly tailored toward achieving those interests. See Rounds, 530 F.3d at 733. Physicians have been, and continue to be, fully capable of ensuring that the patient has not chosen to undergo an abortion against her will. See SDCL 34-23A-10.1 (“No abortion may be performed unless the physician first obtains a voluntary and informed written consent of the pregnant woman upon whom the physician intends to perform the abortion[.]”). Indeed, section 2 of the Act acknowledges the existence of the physician’s common law duty to determine that “the patient’s consent is voluntary and uncoerced and informed[.]” Moreover, when considering the goal of protecting the patient from coercion and defendants’ portrayal of what the Pregnancy Help Center Requirements actually require, it becomes clear that the requirements are not tailored towards the proclaimed compelling state interest. As discussed earlier, defendants argue that the Pregnancy Help Center Requirements do not require the pregnant woman to say anything to the pregnancy help center employee other than that she is pregnant and has chosen to undergo an abortion. If this is all that is required, then the requirements do little, if anything, in terms of achieving the goal of protecting a woman from being coerced into obtaining an abortion. With regard to the goal of informing the woman about abortions, alternatives to abortion, and pregnancy assistance, there are several less restrictive alternatives that are equally capable of informing the pregnant woman about such matters. For example, the physician or the physician’s agent is already required by SDCL 34-23A-10.1 to provide the following information to the patient at least 24 hours in advance of the abortion: the name and address of a pregnancy help center near the abortion facility; that written materials produced by the state of South Dakota are available free of charge; and that a multi-media website developed by the state South Dakota exists. Cf. Reno v. American Civil Liberties Union, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (holding that a statute was not narrowly tailored because there were “less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). If the woman wishes to consult with a pregnancy help center, read pamphlets, or study the website, she is free to do so. Because the Pregnancy Help Center Requirements only apply to women who have chosen to undergo an abortion, they do nothing to inform pregnant women who may not be seeking an abortion but are seeking information about alternatives to abortion and information about assistance for raising children. Defendants argue that using printed materials or the patient’s physician to provide information to pregnant women who have chosen to undergo an abortion have not always been successful. Thus, according to defendants, the legislature is allowed to experiment with different message delivery mechanisms in an attempt to ensure that the woman is fully informed. The court rejects defendants’ underlying assumption that legislatures are allowed to use more intrusive means that regulate speech because the alternatives are not 100 percent successful in achieving a compelling state interest. See Reno, 521 U.S. at 875, 117 S.Ct. 2329 (reaffirming the holding in Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 109 5.Ct. 2829, 106 L.Ed.2d 93 (1989), that “rejected the argument that we should defer to the congressional judgment that nothing less than a total ban would be effective in preventing enterprising youngsters from gaining access to indecent communications”). Moreover, the burden is on defendants to demonstrate that the requirements are narrowly tailored, and there is nothing in the record that supports defendants’ underlying assumption that truthful, relevant, and non-misleading information given through a pregnancy help center will cause a pregnant woman to be better informed than the current existing methods from which a woman can choose on a voluntary basis. In fact, forcing a woman to listen to someone who is opposed to her decision to have an abortion is likely to cause the woman to reject the information outright. For these reasons, the court finds that defendants have failed to demonstrate that tile means chosen to achieve the identified interests are narrowly tailored toward achieving the purported compelling state interests. In accordance with recent Supreme Court decisions involving facial free speech challenges, the court concludes that plaintiffs have demonstrated that “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, — U.S. —, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (internal quotations and citation omitted). See also Brown v. Entm’t Merchs. Ass’n, — U.S. —, 131 S.Ct. 2729, 2734-35, 180 L.Ed.2d 708 (2011) (recognizing that the holding in Stevens “controls this case”). Cf. Gonzales v. Carhart, 550 U.S. 124, 167, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (“The latitude given facial challenges in the First Amendment context is inapplicable here.”). Therefore, plaintiffs have met their burden of demonstrating that they are likely to succeed on the merits of their claim that the Pregnancy Help Center Requirements violate the First Amendment’s Free Speech Clause. 2. Undue Burden Analysis Plaintiffs argue in the alternative that the Pregnancy Help Center Requirements constitute a substantial obstacle that will deter many women from exercising then-constitutional right to obtain an abortion. Defendants argue that plaintiffs have not demonstrated, and cannot demonstrate, that the Pregnancy Help Center Requirements will interfere with the decision to obtain an abortion for a “large fraction” of the affected women. When a statute is challenged on the ground that it violates a woman’s constitutional right to obtain an abortion, the burden placed on the challenger “has been a subject of some question.” Gonzales v. Carhart, 550 U.S. 124, 167, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (citations omitted). Nonetheless, the Eighth Circuit Court of Appeals has determined that the standard set out in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), applies. See Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir.1995) (“We will therefore apply the Casey standard to determine if South Dakota’s Act to Regulate the Performance of Abortion is constitutional on its face.”). Thus, the court will apply the following standard as set out in Casey: “If the law will operate as a substantial obstacle to a woman’s choice to undergo an abortion ‘in a large fraction of the cases in which [it] is relevant, ... [i]t is an undue burden, and therefore invalid.’ ” Id. at 1458 (alteration in original) (quoting Casey, 505 U.S. at 895, 112 S.Ct. 2791). In determining whether plaintiffs have met this burden, “ ‘[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.’ ” Id. (alteration in original) (citation omitted). As the applicable test makes clear, whether the Pregnancy Help Center Requirements constitute an “undue burden” depends on whether, in a large fraction of the cases in which they are relevant, the Pregnancy Help Center Requirements create a “substantial obstacle to a woman’s choice to undergo an abortion.” See id. There are three issues that must be resolved in order to determine whether plaintiffs have met their burden: (1) in what cases are the requirements “relevant;” (2) do the requirements create a “substantial obstacle to the woman’s choice to undergo an abortion” in those cases in which the requirements are “relevant;” and (3) is the substantial obstacle present in a “large fraction” of the “relevant” cases. As to the issue of what cases are “relevant,” the Pregnancy Help Center Requirements would not apply if the woman has not chosen to undergo an abortion or is uncertain about whether or not she wishes to obtain an abortion. That is, the requirements are only relevant in those instances where a woman has chosen to undergo an abortion in South Dakota. Similarly, the Pregnancy Help Center Requirements are only relevant in those instances where a woman has not chosen to consult with a pregnancy help center on her own. Thus, the relevant cases are those that involve a woman who has chosen to undergo an abortion and would otherwise not consult with a pregnancy help center. Cf. Casey, 505 U.S. at 894, 112 S.Ct. 2791 (limiting the relevant cases to “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement”). With the relevant cases in mind, the next issue is whether the Pregnancy Help Center Requirements create “a substantial obstacle to a woman’s choice to undergo an abortion.” See Miller, 63 F.3d at 1458. The plain language of sections 3, 4, 5, and 6 makes it clear that a woman can obtain an abortion if, and only if, she first consults a pregnancy help center when she otherwise would not. Forcing a woman to divulge to a stranger at a pregnancy help center the fact that she has chosen to undergo an abortion humiliates and degrades her as a human being. The woman will feel degraded by the compulsive nature of the Pregnancy Help Center Requirements, which suggest that she has made the “wrong” decision, has not really “thought” about her decision to undergo an abortion, or is “not intelligent enough” to make the decision with the advice of a physician. Furthermore, these women are forced into a hostile environment. Aside from its compulsive nature, the hostility of the consultation is evidenced by the fact that section 5 of the Act establishes that the only entities that can be listed on the state registry of pregnancy help centers are those that routinely “consult! ] with women for the purpose of helping them keep their relationship with their unborn children” and that “one of [their] principal missions is to educate, counsel, and otherwise assist women to help them maintain their relationship with their unborn children.” A pregnancy help center cannot have even “referred any pregnant women for an abortion at any time in the three years immediately preceding July 1, 2011.” Requiring these women to “have a consultation,” and a “private interview” with a “pregnancy help center” destroys “[t]he right to avoid unwelcome speech” that is “protected in confrontational settings.” Cf. Hill v. Colorado, 530 U.S. 703, 717, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). And it forces an unnecessary confrontation on one of the most volatile subjects in America. See Stenberg v. Carhart, 530 U.S. at 920, 120 S.Ct. 2597 (acknowledging that “Millions of Americans believe that ... abortion is akin to causing the death of an innocent child”); Casey, 505 U.S. at 852, 112 S.Ct. 2791 (recognizing that “some deem [abortions as] nothing short of an act of violence against innocent human life”). There are clear ideological differences between a woman who has chosen to undergo an abortion and a “pregnancy help center.” When considering these differences, a woman will likely be unwilling to actually consult with a pregnancy help center because she will fear being ridiculed, labeled a murderer, subjected to anti-abortion ideology, and repeatedly contacted by the pregnancy help center. Moreover, a woman may likely believe, rightly or wrongly, that her decision to have an abortion could become public information. And it will not matter to her that in the future she may be able to obtain legal relief from the pregnancy help center worker who disclosed the information. By then it will be too late. Thus, rather than risk having such information being made public or to avoid “consulting” with someone who is not supportive of her decision to have an abortion, she will be forced to remain pregnant. The Pregnancy Help Center Requirements establish that those women who choose to undergo an abortion must consult with the pregnancy help center and divulge personal information against their will in order to effectuate their decision to undergo an abortion. The court finds these requirements do “not merely make abortions a little more difficult or expensive to obtain.” Casey, 505 U.S. at 893, 112 S.Ct. 2791. Rather, the requirements constitute a substantial obstacle to a woman’s decision to obtain an abortion because they force the woman against her will to disclose her decision to undergo an abortion to a pregnancy help center employee before she can undergo an abortion. Cf. Casey, 505 U.S. at 887, 892, 112 S.Ct. 2791 (finding the spousal notification requirement to be unconstitutional partly because there are “many cases in which married women do not notify their husbands [because] the pregnancy is the result of an extramarital affair” even though the spousal notification requirement allowed the woman to “certify[] that her husband is not the man who impregnated her”). Defendants argue that the Pregnancy Help Center Requirements are not a substantial obstacle because no woman “who wants to keep her pregnancy a secret, will forgo her option to have an abortion because she does not want to reveal her pregnancy to a third party [because] she will already have disclosed her pregnancy to staff members at an abortion clinic.” Docket 32 at 68. This argument is without merit. There is an inherent difference between compelling a woman to disclose her decision to undergo an abortion to a “pregnancy help center” and a woman freely disclosing this decision to someone she chose to provide her with the medical services that she seeks. See Hill, 530 U.S. at 717, 120 S.Ct. 2480 (recognizing the significance of “confrontational settings” in the context of free speech issues). The former situation leads to the fear described above. See Casey, 505 U.S. at 893, 894, 112 S.Ct. 2791 (“We must not blind ourselves to ... the significant number of women who fear for their safety[.]”); Miller, 63 F.3d at 1463 (acknowledging that “non-abusive parents who differ from their daughters on religious or moral grounds over abortion may be prepared to prevent their daughters from obtaining abortions even when those abortions are in the daughters’ best interests”). The latter situation does not. For the reasons expressed above, the court finds that the Pregnancy Help Center Requirements do create a substantial obstacle in the relevant cases. The next issue is whether this substantial obstacle is present in a “large fraction” of the “relevant” cases. Defendants argue that a “large fraction” means “at least half of the group in question.” See Docket 32 at 32. If the plurality opinion in Casey intended “large fraction” to mean a majority, it would have said majority. Indeed, Casey’s use of the phrase “large fraction” at most indicates that the number of women affected by the requirements must be more than a “small” fraction of the group in question. Admittedly, this construction of “large fraction” does little in terms of establishing the phrase’s scope. See Casey, 505 U.S. at 973 n. 2, 112 S.Ct. 2791 (“The joint opinion concentrates on the situations involving battered women and unreported spousal assault, and assumes, without any support in the record, that these instances constitute a ‘large fraction’ of those cases in which women prefer not to notify their husbands (and do not qualify for an exception).”) (Rehnquist, White, Scalia, Thomas, JJ. dissenting). Nonetheless, some guidance as to the rigidity of the phrase “large fraction” is available. In Casey, the Supreme Court addressed the constitutionality of, among other provisions, a “spousal notification requirement.” 505 U.S. at 887, 112 S.Ct. 2791. The relevant cases in Casey with regard to that requirement were “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” Id. at 895, 112 S.Ct. 2791. The Court held that the requirement was unconstitutional under the “large fraction” test after it found that the requirement was “likely to prevent a significant number of [those] women from obtaining an abortion.” 505 U.S. at 893, 894, 112 S.Ct. 2791 (emphasis added). This language and reasoning indicates that the term “large fraction” should not be construed as some numerical threshold that must be established. While certainly not establishing the bottom end of what constitutes a “large fraction,” it appears that the Eighth Circuit Court of Appeals’ decision in Miller comes the closest. In Miller, the Eighth Circuit Court of Appeals addressed the validity of South Dakota’s bypass procedure for minors seeking an abortion without parental consent. 63 F.3d at 1458. In the opinion, two different sets of relevant cases were analyzed. The first set involved those pregnant minors who did not have access to a “bypass procedure” because they did “not fall under [the] abuse exception,” even though they “could show that an abortion is in their best interests.” See id. at 1462. The second set involved pregnant minors who had access to a “bypass procedure” because they were abused, but were nonetheless unable “to use the abuse exception” due to the minor “blam[ing] themselves for the abuse” or being “very protective of the abusive parent.” See id. at 1463. The Eighth Circuit Court of Appeals found that the challengers had “shown that a large fraction of minors seeking pre-viability abortions would be unduly burdened by South Dakota’s parental-notice statute, despite its abuse exception.” Id. With regard to the first set of relevant cases, which involved the “best interest” minors, the court rejected the argument that “the minor could simply notify her other parent” because “many of them, as a practical matter, have only one parent to notify.” Id. at 1462 n. 10. According to the Eighth Circuit Court of Appeals, approximately 18 percent warranted use of the descriptive term “many.” See id. (“Roughly eighteen [percent] of South Dakota’s minors live in single-parent homes; many of them, as a practical matter, have only one parent to notify.”). The Eighth Circuit Court of Appeals struck down this portion of the statute because the challengers had “shown that a large fraction of [these] minors seeking pre-viability abortions would be unduly burdened by South Dakota’s parental-notice statute, despite its abuse exception.” Id. at 1463. With regard to the second set of relevant cases, which involved minors that were abused, the Eighth Circuit Court of Appeals recognized that “[a] minor faced with the untenable choice of turning in her parent or forgoing an abortion will often delay her decision until it is too late; she may even commit suicide rather than choose between two such agonizing choices.” Id. (emphasizing that “[e]ven if South Dakota’s exception were otherwise acceptable, its failure to provide an alternative procedure for these minors would doom it”). The number of the abused minors who would choose not to utilize the “bypass procedure” was not explicitly identified. Nonetheless, it stands to reason that many of those minors would be hesitant to report their parents. Here, in nearly every instance where the Pregnancy Help Center Requirements are relevant, a woman who chooses to undergo an abortion will experience a high degree of degradation because she will be forced to disclose her decision to someone who is fundamentally opposed to it. Women will also be afraid of being berated, belittled, or confronted about their decision, being subsequently contacted by the pregnancy help center, and having their decision to have an abortion become public information. As a result, women will delay or refrain from consulting with the pregnancy help centers, which will prevent them from being able to carry out their decision to undergo an abortion. See Casey, 505 U.S. at 893-95, 112 S.Ct. 2791; Miller, 63 F.3d at 1462-63. Thus, the Pregnancy Help Center Requirements constitute a substantial obstacle for a large fraction of the relevant cases. Plaintiffs have therefore demonstrated that they are likely to succeed with regard to their claim that the Pregnancy Help Center Requirements violate the Fourteenth Amendment’s Due Process Clause because they create an undue burden on the woman’s choice to obtain a legal abortion. See Casey, 505 U.S. at 877, 112 S.Ct. 2791 (“A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”). To summarize, plaintiffs have demonstrated that they are likely to succeed on their challenges to the Pregnancy Help Center Requirements because the Requirements compel patients to speak in violation of the First Amendment’s Free Speech Clause and because they constitute an undue burden on a woman’s choice to undergo an abortion in violation of the Fourteenth Amendment’s Due Process Clause. B. The 72-Hour Requirement — Undue Burden Analysis The beginning portion of section 3 of the Act establishes that before obtaining an abortion, a patient must wait at least 72 hours between her initial consultation and an abortion. Specifically, section 3 reads in relevant part as follows: No surgical or medical abortion may be scheduled except by a licensed physician and only after the physician physically and personally meets with the pregnant mother, consults with her, and performs an assessment of her medical and personal circumstances. Only after the physician completes the consultation and assessment complying with the provisions of this Act, may the physician schedule a surgical or medical abortion, but in no instance may the physician schedule such surgical or medical abortion to take place in less than seventy-two hours from the completion of such consultation and assessment except in a medical emergency[.] Section 3 also limits when and how a patient can consent to the medical procedure. This portion of section 3 states: No physician may take a signed consent from the pregnant mother unless the pregnant mother is in the physical presence of the physician and except on the day the abortion is scheduled, and only after complying with the provisions of this Act as it pertains to the initial consultation, and only after complying with the provisions of subdivisions 34-23A-10. 1(1) and (2). Finally, section 4 establishes that “no physician may ... perform an abortion[ ] unless the physician has fully complied with the provisions of this Aet[.]” Plaintiffs challenge these portions of section 3 and 4, hereafter identified as the 72-Hour Requirement, on two grounds: (1) they create an undue burden on women’s rights to obtain an abortion; and (2) they violate the patients’ and plaintiffs’ rights to equal protection of the laws. Because plaintiffs do not brief their equal protection claim, the court will only conduct an undue burden analysis. Similar to the other provisions in the Act, whether the 72-Hour Requirement constitutes an “undue burden” depends on whether, in a large fraction of the cases where it is relevant, the 72-Hour Requirement creates a “substantial obstacle to a woman’s choice to undergo an abortion.” See Miller, 63 F.3d at 1458. There are three issues that must be resolved in order to determine whether plaintiffs have met their burden: (1) in what cases is the 72-Hour Requirement “relevant;” (2) does the requirement create a “substantial obstacle to the woman’s choice to undergo an abortion” in those cases where the 72-Hour Requirement is “relevant;” and (3) is the substantial obstacle present in a “large fraction” of the “relevant” cases. On its face, the 72-Hour Requirement applies to every woman who chooses to undergo an abortion. According to defendants, the requirement is therefore relevant to every woman who chooses to undergo an abortion. Because the 72-Hour Requirement imposes a substantial obstacle on almost every woman who chooses to undergo an abortion, the court assumes, without deciding, that defendants’ broad construction of the relevant cases is proper. But see Casey, 505 U.S. at 894, 112 S.Ct. 2791 (“The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”). With regard to whether the 72-Hour Requirement constitutes a substantial obstacle, plaintiffs argue with supporting evidence that women could be forced to wait up to one month between their initial consultation and the abortion procedure if the same physician is required to conduct both the initial consultation and the abortion. See Docket 10-6 at 6 (“[D]ue to the physicians’ schedules, a woman could be delayed up to a month in order to have two appointments with the same physician.”). This is because there is only one clinic in South Dakota, which provides abortions one day a week on average. Docket 10-6 at 4. And the three to four physicians who p'erform the abortions take turns flying into Sioux Falls about once a month. Docket 10-6 at 4. Defendants argue that such a delay will not occur because there is no requirement that the initial consultation be performed by the same physician who performs the abortion. Section 4 of the Act states that “no physician may ... perform an abortion, unless the physician has fully complied with the provisions of this Act and first obtains from the pregnant mother, a written, signed statement setting forth all information required by subsection (3)(b) of section 3 of this Act.” Defendants’ argument that “the physician” actually means “a physician” is without merit because when a statute is “not ambiguous,” “[i]t is to be assumed that [the statute] means what it says and that the legislature has said what it meant.” Kreager v. Blomstrom Oil Co., 298 N.W.2d 519, 521 (S.D.1980) (citation omitted). Such an alteration is therefore beyond the court’s authority. Even if the physician who performed the abortion was not required to have conducted the initial consultation, the 72-Hour Requirement still creates a substantial obstacle considering the circumstances that surround many of the women who choose to undergo an abortion in South Dakota. For example, 56 percent of women who chose to undergo an abortion “during the year beginning March 1, 2010,” had “incomes that [were] 100% or less than the federal poverty level.” Docket 10-6 at 4. And 87 percent of the women who chose to undergo an abortion during that same time period lived “at or below 200 percent of the [Federal Poverty Level].” Docket 10-6 at 4. Furthermore, approximately 30 percent of the women who chose to undergo an abortion during this time period traveled more than 150 miles to the abortion clinic, for a total of 300 miles. Docket 10-6 at 3. Because the 72-Hour Requirement effectively requires two trips, almost every woman will be forced to cope with the financial burdens created by the additional trip. These burdens are great when considering the fact that approximately 87 percent of the women are at or below 200 percent of the Federal Poverty Level. For many of these women, it stands to reason that they will be unable to afford the second trip and will abstain from obtaining an abortion even though they have chosen to undergo one. And women who live farther away are even more likely to be unable to afford a second trip. The inability to pay for the additional trip also becomes worse for the women who are stay-at-home mothers because they will be required to make additional arrangements for childcare. Docket 10-6 at 4. And if a pregnant woman has a job, she will be required to take twice as much time off from work. Docket 10-6 at 4. The court finds that these financial circumstances constitute a substantial obstacle for a large fraction of the relevant cases. The effective doubling of the financial burden created by the 72-Hour Requirement is arguably insignificant when compared to the other obstacles created by the 72-hour delay. For example, even if the delay between the initial consultation and the abortion is only one week, pregnant women who choose to undergo an abortion can be denied the ability to undergo a medication abortion, which may be their chosen method of abortion, because of the delay. Docket 10-6 at 2-3. A medication abortion is only available until 9 weeks after the first day of the woman’s last menstrual period, after which time a surgical abortion is required. Docket 10-6 at 2. For those women who refuse to undergo a surgical abortion in such situations, the 72-Hour Requirement effectively denies them of their right to an abortion. As to those women who choose a surgical abortion near the end of the first trimester, the delay created by the 72-Hour Requirement will prevent them from being able to obtain any abortion in South Dakota because these abortions are only available through the first 13.6 weeks after the first day of the woman’s last menstrual period. Docket 10-6 at 2-3. It stands to reason that the number of women who are effectively denied their right to undergo an abortion increases as the required period of delay increases. Moreover, it is generally accepted that women are often the victims of abuse. And abusers often forcibly impregnate their partners to maintain control or increase their control over their women. Docket 10-7 at 7-8. The abusers in such relationships closely monitor the women. Docket 10-7 at 9. For example, the abuser will often keep track of the mileage on the car or remove the distributor cap on the car to prevent the woman from leaving the house. Docket 10-7 at 9. Abusers will call the woman numerous times at work or home to ensure that she is there. Docket 10-7 at 9. An abuser will also regularly appear at the woman’s place of work unexpectedly “to check up on her.” Docket 10-7 at 9. For those women who are in such relationships, the 72-Hour Requirement creates an incredible obstacle because it requires them to make separate trips, which for many is effectively impossible to do because two trips double the chances of being “caught” and punished by the abusive partner. Docket 10-7 at 9-10. In summary, all women who choose to undergo an abortion will be forced to wait between 7 to 30 days before actually being able to obtain an abortion. That constitutes a substantial obstacle for those women who have chosen to undergo an abortion near the end of the first trimester because there are no second trimester abortions available in South Dakota. Moreover, because every woman will be forced to make two trips, many women will not undergo an abortion because they will be unable to financially afford a second trip. Furthermore, the 72-Hour Requirement creates a substantial obstacle for those women who are unable to make a second trip because it places them in greater risk of being caught by their abuser. When considering the numerous substantial obstacles created by the 72-Hour Requirement, there can only be one conclusion: it creates a substantial obstacle for a large fraction of the women who choose to undergo an abortion in South Dakota. Plaintiffs have therefore demonstrated that they are likely to succeed on their claim that the 72-Hour Requirement constitutes an undue burden on a woman’s ability to obtain an abortion. C. The Coercion Provisions — Unconstitutionally Vague Subsection 1 of section 3 of the Act reads, in relevant part, as follows: During the initial consultation between the physician and the pregnant mother, prior to scheduling a surgical or medical abortion, the physician shall [d]o an assessment of the pregnant mother’s circumstances to make a reasonable determination whether the pregnant mother’s decision to submit to an abortion is the result of any coercion, subtle or otherwise. In conducting that assessment, the physician shall obtain from the pregnant mother the age or approximate age of the father of the unborn child, and the physician shall determine whether any disparity in the age between the mother and father is a factor in creating an undue influence or coercion. Subsection 4 of section 7 states that “coercion,” for purposes of the Act, “exists if the pregnant mother has a desire to carry her unborn child and give birth, but is induced, influenced, or persuaded to submit to an abortion by another person or persons against her desire.” The Act further states that “[s]uch inducement, influence, or persuasion may be by use of, or threat of, force, or may be by pressure or intimidation effected through psychological means, particularly by a person who has a relationship with the pregnant mother that gives that person influence over the pregnant mother.” As part of the Pregnancy Help Center Requirements, section 6 of the Act states: The pregnancy help center may voluntarily provide a written statement of assessment to the abortion provider, whose name the woman shall give to the pregnancy help center, if the pregnancy help center obtains information that indicates that the pregnant mother has been subjected to coercion or that her decision to consider an abortion is otherwise not voluntary or not informed.... The physician shall review and consider any information provided by the pregnancy help center as one source of information, which in no way binds the physician, who shall make an independent determination consistent with the provisions of this Act, the common law requirements, and accepted medical standards. Section 6 further explains that “[a]ny written statement or summary of assessment prepared by the pregnancy help center ... as a result of the procedures created by this Act[ ] may be forwarded by the pregnancy help center, in its discretion, to the abortion physician.” Once the statement or summary is sent to the physician, it must “be maintained as a permanent part of the pregnant mother’s medical records.” Section 8 recognizes a civil cause of action with “a civil penalty in the amount of ten thousand dollars, plus reasonable attorney’s fees and costs,” for “[a]ny woman who undergoes an abortion, or her survivors, where there has been an intentional, knowing, or negligent failure to comply with the” Coercion Provisions in the Act. This is in addition to damages for injuries sustained under any common law or statutory provisions. And subsection 2 of section 9 provides that “[i]f the trier of fact [in a civil action] determines that the abortion was the result of coercion, and it is determined that if the physician acted prudently, the physician would have learned of the coercion, there is a nonrebuttable presumption that the mother would not have consented to the abortion if the physician had complied with the provisions of this Aet[.]” The Act does not establish a time frame as to when the pregnancy help center’s written statement or summary will be submitted to the physician. And section 6 of the Act concludes by establishing that “[n]othing in this Act may be construed to impose any duties or liability upon a pregnancy help center.” Plaintiffs challenge these sections, hereafter identified as the Coercion Provisions, on the following three grounds: (1) they violate a woman’s right to obtain an abortion because they create an undue burden; (2) they are impermissibly vague; and (3) they violate the patients’ and plaintiffs’ rights to equal protection of the laws. Plaintiffs argue that the term coercion, as defined in the Act, is unconstitutionally vague. In a challenge against a statute on the basis that it is unconstitutionally vague, the challenger “must demonstrate that the law is impermissibly vague in all of its applications, and that the statute could never be applied in a valid manner.” Planned Parenthood of Minn. v. Minn., 910 F.2d 479, 482 (8th Cir.1990) (internal quotations and citations omitted). The standard for determining whether a statute is unconstitutionally vague is whether it gives people of common intelligence fair notice that certain conduct is prohibited. Id. at 482. If the forbidden conduct is so poorly defined that a person of common intelligence must necessarily guess at its meaning and differ as to its application, the statute is unconstitutionally vague. Id. (citations omitted). And the statute cannot be so vague as to allow for arbitrary or discriminatory enforcement. Id. (citations omitted). For purposes of the Act, coercion exists if the pregnant woman “is induced, influenced, or persuaded to submit to an abortion by another person or persons against her desire.” While coercion is explicitly defined in the Act, the term “desire” is not. The common meaning of desire is “to long or hope for.” See Merrianu-Webster Dictionary (2011). An individual’s longing or hope is an amorphous standard that is difficult for a physician to ascertain and is not synonymous with the concept of depriving someone of their free will that is generally considered when determining whether someone acts under coercion. See State v. Willis, 370 N.W.2d 193, 199 (S.D.1985) (affirming jury instruction that explained coercion as “existing] where one is ... induced to do or perform some act under circumstances which deprive her of the exercise of her free will”). Recognizing that the phrase “against her desire” does not give a physician fair notice of what is meant by “coercion” as defined in the Act, defendants argue that “against her desire” actually means “against her will.” As the Eighth Circuit Court of Appeals recently noted, however, “South Dakota recognizes the well-settled canon of statutory interpretation that ‘[w]here [a term] is defined by statute, the statutory definition is controlling.’ ” Rounds, 530 F.3d at 735 (alteration in original) (quoting Bruggeman v. S.D. Chem. Dependency Counselor Certification Bd., 571 N.W.2d 851, 853 (S.D.1997)). The Eighth Circuit Court of Appeals emphasized that “[w]hen a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.” Id. (citations omitted). Thus, the court cannot “redefine” how the legislature defined “coercion.” Furthermore, defendants’ argument that the Coercion Provisions only apply when the abortion is conducted against the pregnant woman’s “will,” instead of “desire,” is generally irrelevant when considering the fact that private individuals can bring suit against the physician and argue that the legislature meant what it said. Stenberg v. Carhart, 530 U.S. at 940, 120 S.Ct. 2597 (“[0]ur precedent warns against accepting as ‘authoritative’ an Attorney General’s interpretation of state law when ‘the Attorney General does not bind the state courts or local law enforcement authorities.’ ” (citation omitted)). See also Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985) (“While we have in the past recognized that Attorney General’s opinions should be considered when construing statutes, such opinions are not binding on the courts.”). The court therefore finds that defendants’ attempt to have the court alter the “explicit definition” of coercion is fundamentally unreasonable because it goes against the express language used by the legislature in defining a term in the Act. See Kreager, 298 N.W.2d at 521 (“It is to be assumed that ... the legislature has said what it meant.” (citation omitted)). Moreover, subsection 1 of section 3 of the Act requires the physician to determine whether the decision to undergo an abortion “is the result of any coercion, subtle or otherwise.” Because the Act defines “coercion” as “existing] if the pregnant mother has a desire to carry her unborn child and give birth, but is induced, influenced, or persuaded to submit to an abortion by another person or persons against her desire,” “subtle or otherwise” must mean something different. See Delano v. Petteys, 520 N.W.2d 606, 609 (S.D.1994) (“This court will not construe a statute in a way that renders parts to be duplicative and surplusage.” (citing Farmland Ins. Co. v. Heitmann, 498 N.W.2d 620 (S.D.1993); Revier v. Sch. Bd. of Sioux Falls, 300 N.W.2d 55, 57 (S.D.1980))). If it means “subtle” inducement, influence, or persuasion, then a physician will be forced to guess whether a patient is the victim of coercion because the pregnant woman herself is likely unaware of the “subtle coercion.” If “subtle or otherwise” does not mean “subtle inducement, influence, or persuasion,” then the court, and presumably “a person of common intelligence,” must “guess” what the phrase actually means. See Planned Parenthood of Minn. v. Minn., 910 F.2d at 482. This uncertainty will cause physicians to refuse to offer abortion services out of fear of being subjected to severe civil sanctions. Cf. Miller, 63 F.3d at 1467 (“The potential civil liability for even good-faith, reasonable mistakes is more than enough to chill the willingness of physicians to perform abortions in South Dakota.” (citations omitted)). Plaintiffs have therefore demonstrated that “the law is impermissibly vague in all of its applications, and that the statute could never be applied in a valid manner.” Planned Parenthood of Minn. v. Minn., 910 F.2d at 482. The court finds that plaintiffs have met their burden of demonstrating that they are likely to succeed on the merits of their claim that the Coercion Provisions are unconstitutionally vague. D. The Risk Factors Requirement Subsections 4 and 5 of section 3 of the Act require the physician, “[d]uring the initial consultation between the physician and the pregnant mother, prior to scheduling a surgical or medical abortion[,]” to: (4) Conduct an assessment of the pregnant mother’s health and circumstances to determine if any of the risk factors associated with abortion are present in her case, completing a form which for each factor reports whether the factor is present or not; [and] (5) Discuss with the pregnant mother the results of the assessment for risk factors, reviewing with her the form and its reports with regard to each factor listed[.] Subsection 6 of section 3 of the Act describes what the physician must do in the event that “any risk factor is determined to be present.” (6) In the event that any risk factor is determined to be present, discuss with the pregnant mother, in such manner and detail as is appropriate so that the physician can certify that the physician has made a reasonable determination that the mother understands the information, all material information about any complications associated with the risk factor, and to the extent available all information about the rate at which those complications occurs both in the general population and in the population of persons with the risk factor[.] And subsection 7 of section 3 of the Act describes what the physician must do in the event that “no risk factor is determined to be present.” (7) In the event that no risk factor is determined to be present, the physician shall include in the patient’s records a statement that the physician has discussed the information required by the other parts of this section and that the physician has made a reasonable determination that the mother